R v Chan

[2002] NSWCCA 71

Reported Decision: (2002) 128 A Crim R 119

New South Wales

Court of Criminal Appeal

CITATION:	R v Chan [2002] NSWCCA 71
FILE NUMBER(S):	CCA 60134/00
HEARING DATE(S):	28/05/2001
JUDGMENT DATE:	19 March 2002
PARTIES :	Regina Chi Keung Chan
JUDGMENT OF:	Dowd J at 1; Greg James J at 69; Smart AJ at 75

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	99/11/0383
LOWER COURT JUDICIAL OFFICER :	Shadbolt DCJ

COUNSEL :	Mr JC Papayanni- Applicant Ms EL Fullerton SC- Crown/Respondent
SOLICITORS:	William Chan & Co- Applicant Commonwealth Director of Public Prosecutions- Crown/Respondent
CATCHWORDS:	Sentence appeal - Head sentence - Non-parole period - Hierarchy of offenders - Importation of drugs
LEGISLATION CITED:	Crimes Act 1914 (Cth) Criminal Appeal Act 1912 Customs Act 1901 (Cth) Judiciary Act 1903 (Cth)
CASES CITED:	Cheng v The Queen (2000) 74 ALJR 1482. DPP (Cth) v El Karhani [1990] 21 NSWLR 370. House v The King (1936) 55 CLR 499. LI [1998] 1 VR 637. Lowe v R (1984) 154 CLR 606. Power (1973) 131 CLR 623. R v Bateman (Unreported, NSWCCA, 18 September 2000). R v Behar (Unreported, NSWCCA, 14 October 1998). R v Bradley (1997) 137 FLR 314. R v Budiman (1998) 102 A Crim R 411. R v Cheung (WA) (1997) 97 A Crim R 283. R v Drazkiewicz (Unreported, NSWCCA, 12 November 1993). R v El Karhani [1990] 21 NSWLR 370. R v Lee & Ng (Unreported, NSWCCA, 20 December 1996). R v Meggett (Unreported, NSWSC, 2 June 1999). R v Paull [1990] 20 NSWLR 427. R v Peel [1971] 1 NSWLR 247. R v Spiteri (Unreported, NSWCCA, 24 February 1999). R v Tan (Vic) (1995) 78 A Crim R 300. The Queen v Leroy [1984] 2 NSWLR 441. The Queen v Majeric VICCCA 9 March 2001. Wong v The Queen; Leung v The Queen [2001] 76 ALJR 79.
DECISION:	1. Leave to appeal against sentence granted; and 2. Appeal against sentence dismissed.

IN THE COURT
OF CRIMINAL APPEAL

DOWD J
GREG JAMES J
SMART AJ

Regina v Chi Keung CHAN

Judgment

1 DOWD J

: This is an application for leave to appeal against the severity of the sentence imposed on the applicant, Chi Keung Chan, who had entered a guilty plea before Shadbolt DCJ at the Downing Centre District Court on 13 June 1999 to a charge under s233B(1)(d) of the Customs Act 1901 (Cth), for being knowingly concerned in the importation of not less than a commercial quantity of a prohibited substance, namely heroin. The heroin of the subject offence weighed 253.3 kilograms. The maximum penalty is life imprisonment.

2 On 14 October 1998, the applicant was sentenced to thirteen years imprisonment, commencing that day to expire on 13 October 2011, with a non-parole period of ten years to commence 14 October 1998, to expire on 13 October 2008.

3 The Learned Sentencing Judge found that the objective seriousness of the offence warranted a sentence of thirty-six years. Applying 16G of the Crimes Act 1914 (Cth) (‘the Act’), the Learned Sentencing Judge reduced the sentence by ten years, to twenty-six years with a non-parole period of twenty years. Shadbolt DCJ held that the applicant would receive a ten percent discount for his guilty plea and the assistance he had provided to the authorities to date, and a further forty percent discount in sentence was afforded for future assistance, particularly in relation to an undertaking that the applicant had given to assist the Crown in proceedings against three co-accused of the applicant.

4 His Honour held that if the applicant did not abide by his undertaking pursuant to s21 of the Act, a future Court would have to re-sentence the applicant, in which case the sentence imposed by Shabolt DCJ would be twenty three and a half years, with a non-parole period of eighteen and a half years.

The Facts

5 On 14 October 1998, a speedboat carrying thirty-one “Prada” sports bags, which contained between them 252.3 kilograms of pure heroin, the subject of the charge, landed at Grant’s Beach near Port Macquarie, New South Wales at approximately 3.30am. The applicant was the driver of the speedboat. Two men accompanied him. Each of the three men was arrested. A further four men whom had been earlier observed by the police, apparently awaiting the arrival of the speedboat, were also arrested.

6 On 15 August 1998, the vessel known as MV Uniana left Hong Kong with a speedboat secreted on board, stowed in a specially modified hold. The vessel travelled to international waters off the Thai/Burmese coastline where the subject heroin was taken on board. The heroin was then transported to the Uniana, stowed in a void space under the deck. The vessel then travelled through international waters to Australia.

7 On 13 October 1998, at approximately 9.45pm the vessel was about twenty to twenty-five nautical miles from Grant’s Beach, the speedboat was lowered from the vessel with the intention of ferrying the heroin to shore.

8 At the time the applicant was arrested on the beach, the MV Uniana was some twelve nautical miles off the Australian coast. It was boarded by Australian Federal Police and officers of the Australian Customs Service and detained. All of the eleven men on board were arrested.

9 The applicant was taken to a police station and interviewed on the same day. The applicant admitted his involvement in the operation, but as the Learned Sentencing Judge remarked (ROS p6) that whilst the plea of guilty does suggest contrition, the plea was taken in circumstances where the offence under s233 of the Customs Act could hardly be denied as:

“He [the applicant] was first interviewed on the beach with the heroin positioned around him whilst still wet and shivering and dressed in a wet suit ”.

The Applicant’s History

10 The applicant had worked as a fisherman in Hong Kong for twenty-five years prior to his involvement in this offence. He lived in Hong Kong in his own flat (subject to a mortgage) with his wife and two young children. He had no prior criminal convictions or any involvement with drugs. He was earning $HK12,000 a month and told police that he was in debt owing $HK300,000 dollars as a result of a failed fishing enterprise.

11 Initially the applicant told police that he had been recruited for the job by a casual acquaintance, Ah Lung. It was later revealed that in fact he was recruited by a Fei Lo Nam, and it was the applicant who in turn had recruited Ah Lung. The applicant was offered by Fei Lo Nam the position of maintaining and driving a speedboat in the illegal enterprise. The applicant was offered $HK300,000 dollars for his role. Within two weeks of been recruited, the applicant was in Australia and was met by Mr Fei Chai, for the purpose of locating an ideal landing spot on which to bring the subject heroin. The applicant was responsible for choosing the site for landing and the date on which to bring the drugs into Australia.

12 The applicant was employed only for a single journey being paid a specific amount for his role in the enterprise. He was an expert in that he had special skills in relation to navigation and the operation of a speedboat. He had purchased a wetsuit and goggles for the operation. The applicant, during the course of the voyage, took different instructions from Nam, which he carried out.

13 The applicant boarded the Uniana at Hong Kong on 15 August 1998. The applicant’s role was to have him picking up the heroin from one vessel at sea on the Thai/Burmese coastline, loading it onto the speedboat for which he was responsible, and transferring it onto the Uniana, assisting with the storage of the heroin on that vessel. The applicant was responsible for negotiating with the captain of the Uniana and its crew.

14 The applicant with the two other men involved in the enterprise, loaded the heroin onto the speedboat for the purpose of bringing it onto Grant’s Beach at Port Macquarie, where he was arrested.

15 Judge Shadbolt took into account the general sentencing principles set out in s16A(1) and (2) of the Act, examining firstly the nature and circumstances of the offence involved, and found that the quantity of heroin involved, and the sophistication of the enterprise directed to importing it, placed it within the band of the most serious case, and that the applicant played a significant specialist role in the enterprise.

16 The Learned Sentencing Judge held that the applicant’s involvement and objective criminality was very high, and went on to say at p5 of his Remarks on Sentence:

“ The nature of the offence is one of great seriousness and the prisoner should be adequately punished for it.”

17 His Honour acknowledged the applicant’s unblemished record in Hong Kong, nevertheless, held that this would have little impact on sentencing in relation to crimes of this nature; His Honour relying on The Queen v Leroy [1984] 2 NSWLR 441. His Honour acknowledged the applicant’s contrition and the assistance he had given the authorities. The Learned Sentencing Judge also recognised the applicant’s good prospect of rehabilitation, finding that it would be unlikely for him to be involved in any future criminal activities.

18 His Honour also referred to the effect of the sentence upon the applicant’s family, particularly with the applicant having to serve his time in a foreign country, but went on to say that the applicant has only himself to blame for his predicament. His Honour did find that the applicant serving his sentence in protected custody would work in his favour, in terms of reducing the sentence, as he would do his time harder.

19 It was upon all the circumstances of the case, having regard to s17A of the Act that the Learned Sentencing Judge held that imprisonment was the only appropriate penalty for the applicant. The Crown had submitted that the only appropriate staring point, considering the objective seriousness of the case, was a sentence of life imprisonment.

20 His Honour took account of submissions made on behalf of the applicant in relation to the applicant’s role in the enterprise and criminality, stating at p7 of the Remarks on Sentence:

“Secondly, Mr Norrish has submitted that for the maximum penalty to be imposed not only should the crime be one which commands it but the prisoners part in its commission should be such that a life sentence be the only appropriate penalty. Whilst he concedes the first element of this proposition he submits on behalf of his client that his position was not, of those amenable to the criminal law of the Commonwealth, the most serious. With this too I concur”.

21 His Honour also acknowledged the difficulty of attempting to bring these cases into a single category of offence when it comes to sentencing, because of the many differences of objective and subjective features within each case, and also the need for a Sentencing Judge to take into account the position of each offender in what is described as the hierarchy of the enterprise. Shadbolt DCJ, in coming to a decision about the head sentence in this case, relied upon R v Spiteri (Unreported, NSWCCA, 24 February 1999) per Hulme J, and R v Meggett (Unreported, NSWSC, 2 June 1999) per Wood CJ at CL, and found following a thorough examination of the nature and circumstances of the applicant’s case before him (at ROS p8), the following:

“ The present case in my view is one of greater gravity than Meggett, if not in the position occupied by the prisoner certainly in the quantity of drugs brought ashore. I have therefore commenced with a sentence having regard to the objective seriousness of the offence of thirty-six years imprisonment”.

22 The case of Meggett involved similar circumstances to the applicant’s case, involving sophisticated importation techniques with the Sentencing Judge identifying the quantity of the drugs involved in the operation as the distinguishing difference.

23 In sentencing, Shadbolt DCJ said at ROS p9:

“ Having regard to the principles laid out in Gallagher’s Case 1991 ACR at 218, I am not of the view that this sentence has been reduced below a level which would adequately punish the prisoner to one which would be an affront to the community. It is a sentence which is sufficiently severe to punish the prisoner and to deter him from committing such offences again which, absent the general deterrent which must be a foregone by the Crown in return for assistance, are those elements of the sentence which remain to be addressed”.

Role of the Appellate Court

24 The Supreme Court of New South Wales has been invested with the power to exercise federal jurisdiction pursuant to s68 of the Judiciary Act 1903 (Cth), and the power conferred on the Court of Criminal Appeal to grant or refuse leave to appeal is contained within s5 of the Criminal Appeal Act 1912. The Criminal Appeal Act does not set out the grounds upon which this Court can set aside a sentence, but sets out its powers. The manner in which an appeal against the exercise of judicial discretion is to be determined is governed by establishing principles enunciated in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ:

“It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion”.

25 The principle enunciated in House v The King have been universally applied, most recently in the High Court decision in Wong v The Queen; Leung v The Queen [2001] 76 ALJR 79, in which Gleeson CJ made the following statement of the principle at paragraph 58:

“Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residual category of error that, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principles, even though where and how is not apparent from the statement of reasons”.

26 The kind of disproportion, therefore, that must be demonstrated between a sentence which has been imposed and that which should have been imposed on review, before an error of law is found, is not simply a matter that can be reduced to an exercise of mathematics. The question that must be considered is whether the disproportion relied upon is so manifest on its face, to be indicative of not merely idiosyncratic opinion, but, rather a substantive error in law.

The Applicant’s Submission

27 The applicant submits that the sentence discloses error in three respects:

1. The starting point of thirty-six years was excessive;

2. That s16G of the Act was not given its proper operation; and

3. The ratio between the non-parole period and the head
sentence was excessive .

28 The applicant has submitted that the head sentence of thirty-six years is manifestly excessive when it is considered that the applicant would be eighty years of age when his sentence was served.

29 Mr Papayanni, in submissions on behalf of the applicant, compared the applicant’s case with that of Meggett (a case which the Learned Sentencing Judge drew upon as a comparison), and contended that the role Meggett played in that enterprise was far more serious and integral to the operation than the role played by the applicant. The Learned Sentencing Judge identified the amount of prohibited substance involved in both these cases, holding that the amount of prohibited substance involved in the applicant’s case was so much more that it warranted a higher sentence.

30 Drawing on R v Bateman (Unreported, NSWCCA, 18 September 2000), it was further submitted on behalf of the applicant that the criminality involved in Bateman was much higher than that of the applicant, as that offender had previous convictions for drugs, and the amount of drugs involved was greater. In that case, the offender received a head sentence of forty years.

31 Justice Hulme held in Spiteri at p4, citing R v Peel [1971] 1 NSWLR 247 at 262, that the starting point in considering a sentence for a statutory offence is the legislation and, in determining the proper penalty:

“The fundamental consideration is rather the degree by which, having regard to the maximum penalties provided by the Act in question, the [offender’s] conduct would offend against the legislative objective of suppressing the illicit traffic in the prohibited drug”.

32 The weight of the narcotic illegally imported has statutory significance for sentencing purposes under s235 of the Customs Act, in that Parliament has made a distinction between the maximum sentence that may be imposed for offences involving trafficable and commercial quantities of prohibited substances. Whilst the legislative scheme is specific and particular as to the weight of the narcotic substance, it has been held by the majority of the High Court in Cheng v The Queen (2000) 74 ALJR 1482 at 1487 that the terms of the Customs Act do not however posit a state of knowledge on the part of the offender, one way or another, as to the quantity of the narcotic substance actually imported. That quantity, it was held, is an objective fact fixed by reference to evidence. The crime that was committed is thus determined in this way.

33 In Wong & Leung at p127, Kirby J held the following:

“Once the offence is so established, the Customs Act leaves it to the sentencing judge to fix the sentence applicable to the particular case by reference to a maximum punishment attaching to the applicable quantity. The individual features of the offence and the particular matters relevant to the offender are then, within the limits fixed by very large maximum penalties, left, by the scheme of the legislation, to the judge. In the case (as here) of a “commercial quantity” the maximum penalty contemplated by law is “imprisonment for life or for such period as the Court thinks appropriate “. That formula, and the inclusion of the highest penalty known to the law in Australia, emphasises the purposeful provision to the Court sentencing the appellants of a discretion wide enough to permit the wide variety of considerations applicable to the offence and to the offender to be taken into account”.

34 The majority of the High Court decision in Wong and Leung held at p67 that:

“No doubt, within both of these categories, the particular amount of narcotic involved can have significance in fixing the sentence that is to be imposed on an offender”.

35 The Learned Sentencing Judge did not simply look at the amount of heroin involved, but instead included it in an assessment of the overall objective seriousness of the offence and the activities carried out by the applicant. Another relevant factor in terms of the amount of heroin involved in this case was that it did not simply involve a quibble as to whether it would fall into the top range trafficable or the low range commercial, whether it was only a few grams or even kilograms over the prescribed amount, but instead concerned the illegal importation of heroin, of an amount unparalleled in NSW criminal history. This was coupled with a highly sophisticated drug trafficking network.

36 The Crown submitted that His Honour’s reasoning makes manifest that he was well aware that the applicant would not actually serve thirty-six years in prison given the acknowledged operation of s16G of the Act.

37 In The Queen v Majeric VICCCA 9 March 2001 per Chernov JA held at p25 (with Buchanan JA and Calloway JJA agreeing):

“In any event, in the context of the instinctive synthesis, it is not case of first applying s16G and then calculating a discount pursuant to s21E as has been put by Mr Tehan. At the end of the day the judge is required to come to a conclusion as to (a) the appropriate sentence to be imposed on the offender in the light if his promise of future co-operation and (b) the sentence that would have been appropriate absent that promise”.

38 While Majeric is not explicitly dealing with the head sentence as is the argument here, it is without doubt attributing to the Sentencing Judge the right to take into account all of the factors which are going to influence the particular sentencing process, of which s16G of the of the Act is significant.

39 Justice Badgery-Parker in R v Drazkiewicz (Unreported, NSWCCA, 12 November 1993) with whom Mahoney JA and Ireland J agreed, outlined the sentencing process involved when the Court is required to take s16G of the Act into account, and held that:

“It appears to me that there is nothing in the Act to require that the various relevant factors are to be applied in any particular sequence. There is no requirement that a judge first make allowance for the plea and subjective matters and only then apply to a sentence thus arrived at, a further discount under s16G. The matter may be dealt with in one step as His Honour has done, or in two steps as counsel submits, or indeed, it may be perfectly acceptable for the sentencing judge to start from some perceived appropriate base line, make the allowance for the absence of remission which s16G requires and then go further to deal with the question of allowance for subjective matters, assistance to the authorities etc”.

40 The point here is not to suggest that the Learned Sentencing Judge blurred the process into one broad step, which he clearly did not, but instead to say the His Honour, in terms of the “instinctive synthesis” aspect of the sentencing process, was entitled to take account all the subjective and objective features of the case, including the factors addressed in relation to s16G and 21E of the Act when determining a head sentence. In this respect, I respectfully agree with Kirby J in Wong & Leung at p102:

“But in my view, it cannot be denied that adjustments are made to a prima facie level with which the sentencing judge begins the task. How can one even begin to think of “discounts”, for example, without at least conceiving the integer, which is the subject of the discount? The ultimate product is no more scientifically demonstrable than a judgment for damages for personal injuries. But it would be a retrograde step to subsume the adjustments, which the law requires to be taken into account in sentencing by a “return to unexplained judicial intuition”. Greater transparency and honesty are the hallmarks of modern public administration and the administration of justice. In sentencing, we should not turn our backs on these advances”.

41 This view is further supported by Wood CJ at CL, who held that a Sentencing Judge is not required to nominate a starting point for the head sentence before considering an appropriate discount in accordance with s16G of the Act, and in light of the subjective features of the case: R v Budiman (1998) 102 A Crim R 411.

42 In applying these principles, the Learned Sentencing Judge was entitled to take into account the statutory effect of s16G when nominating a head sentence. The head sentence of thirty-six years has to be reviewed within the overall context of the sentencing process.

43 On the submission that the sentence was manifestly excessive, the Court in Majeric held that it is not ordinarily helpful to compare the sentence appealed against with sentences imposed in other cases, albeit in respect of the same or similar offences. However, they went on to say at 29:

“Nevertheless it might be useful to look at the present sentence in order to see if it is obviously out of kilter with them. As the president said in Carey:

‘It is true that comparison for the purpose of sentencing, as has frequently been pointed out, can be misleading because each case must be determined upon its own facts; but, by the same token, consistency of punishment, as Mason J (as he was then) pointed out in Lowe v R (1984) 154 CLR 606 at 610-11, is fundamental to a rational and fair system of criminal justice”.

44 For this limited purpose I have reviewed sentences imposed on offenders in a variety of jurisdictions, all of whom have been deemed “not mere couriers”, all of whom have co-operated with the authorities, following a guilty plea: R v Tan (Vic) (1995) 78 A Crim R 300; R v Cheung (WA) (1997) 97 A Crim R 283; and Bateman (NSW) (supra). It is my view that the enormous amount of heroin involved in this case, coupled with the applicant’s role in the enterprise, the head sentence of thirty-six years is not “out of kilter” with the range of relevant sentences imposed.

45 Rather, the Learned Sentencing Judge brought to the task of sentencing a clear application of s16A(1) of the Act, in determining a sentence..”that is of severity appropriate in all the circumstances of the offence”, in combination with all the relevant factors prescribed in s16A(2) of the Act. The majority in the High Court in Wong & Leung relevantly held on s16A at p75:

“Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say “may be” quite wrong because the task of the sentencer is to take account of all relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying the task is to arrive at an ‘instinctive synthesis’. This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features”.

46 The effects of drug importation, particularly one of this magnitude, is not simply confined to those immediately involved, but has far reaching consequences within the community. It does not require academic analysis to understand that such an enormous quantity of heroin disseminated throughout the towns and cities of Australia will bring with it devastation and degradation of lives, violence, corruption and addiction. The consequence of the distribution of a drug such as heroin is of enormous proportions.

47 Further, s16A(d) and (e) of the Act obliged the Court to take into consideration the potential effect that this enormous amount of heroin would have had had it not been intercepted by the Federal Police. I believe that Shabolt DCJ was alluding to that effect when he applied the principles set out in Gallagher.

48 It was clear from His Honour’s sentencing remarks that the sentence was fixed to properly reflect the gravity of the crime, taking into account the criteria set out in s16A of the Act the other mitigating factors including s16G and 21E of the Act. The Learned Sentencing Judge found the case a serious one for which the legislation provides the maximum penalty of life imprisonment. I therefore do not consider that the head sentence of thirty-six years to be manifestly excessive, and thus I would not uphold this ground of appeal.

49 As to the second point of appeal, it had been submitted on behalf of the applicant that the Learned Sentencing Judge misdirected himself as to the operation of s16G of the Act. It was submitted that the applicant was entitled to the full benefit of s16G which Mr Papayanni proposed was one-third of the head sentence. This would have reduced the head sentence by twelve years to twenty-four years.

50 The Crown submitted that s16G of the Act did not require Shadbolt DCJ to reduce the head sentence by any particular amount, notwithstanding that this Court has recognised that a reduction by one-third has become something of a norm, and ought be allowed in the appropriate case: R v Drazkiewicz. The Crown submitted that His Honour did not need to explain the reason for his departure from the so called one-third norm, and particularly in the event that the departure was not substantial: R v Bradley (1997) 137 FLR 314 per Grove J at p316.

51 The Crown submitted that if it were necessary to seek an explanation for the departure, it can be inferred from His Honour’s overall approach to the sentencing process.

52 In Majeric, Calloway JA held on S16G of the Act at p2:

“The authorities on 16G of the Act 1914 say, on the one hand, that it is necessary in each case to make an individual adjustment of what should be done by way of adjustment provided for by that section but, on the other hand, that it is not inappropriate to take into account that the reduction for remissions and the like is ordinarily one-third of the sentence. That is not a fixed ratio but an appropriate starting point”.

53 In Budiman, it was submitted that the Sentencing Judge had erred in not taking into account the relevant principles for adjusting the sentence, pursuant to s16G of the Act to account for the absence of remissions in this state. Wood CJ at CL there held at 415 that:

“While it may well have been helpful for him to have nominated the allowance made for the s16G consideration, it was not mandatory for him to have done so, nor is it invariably or inevitably the case that one-third allowance should be given: Bradley (1997) 137 FLR 314 and LI [1998] 1 VR 637 at 641-642””.

54 The process of sentencing is not and cannot be reduced to a mathematical calculation or exercise: R v Gallagher. The submission by the applicant failed to realise the central aspect of the sentencing process as identified by this Court in R v El Karhani [1990] 21 NSWLR 370 at 384-385. Although a discount of one-third for remissions is ordinarily a legitimate starting point:

“All that is required is that the fact of the absence of remission or reduction must be ‘taken into account’ in determining the length of the [head] sentence…[A] general discretion to make an adjustment is required of the sentencing judge. In our view it is impermissible to substitute for that discretion a mathematical calculation….”

55 Taking into consideration the seriousness of the offence in this case, it was open to the Learned Sentencing Judge to moderate the s16G adjustment as part of his ‘instinctive synthesis”. I do not therefore consider that the Learned Sentencing Judge misdirected himself. There was, in my view, no error of law.

56 On the third ground of appeal, it was submitted by the applicant that the Learned Sentencing Judge was in error in fixing the non-parole period at seventy-seven percent. It was contended that there was no reason given by His Honour as to why the applicant should not receive what was submitted was the normal parole period of sixty-six percent, and by inference therefore, the applicant submits that there was no reason as to why the applicant should not receive what was termed, the normal parole period.

57 The Crown submitted that while it is acknowledged that there is authority for the proposition that a parole period fixed at seventy five percent of the head sentence is reserved for the worst class of case: R v Paull [1990] 20 NSWLR 427 at 435, to exceed this ratio per se does not warrant the intervention of this Court, particularly if the sentence as a whole, reflects the criminality of the offence, and if the non-parole period is of sufficient length to reflect the principles of general deterrence as well as have significance in terms of rehabilitation.

58 The general practice in the determination of non-parole periods in federal offences is somewhere between sixty and sixty-six percent of the head sentence: R v Lee & Ng (Unreported, NSWCCA, 20 December 1996). It has been held that a non-parole period, which is seventy-five percent of the head sentence, is reserved for the worst class of case: R v Paull; R v Drazkiewicz (Unreported, NSWCCA 12 November 1993).

59 The fixing of non-parole periods is not an arbitrary exercise but one, which reflects general and specific legal principles. The general principle is clear. A statutory discretion must be exercised individually by reference to the purposes for which Parliament has provided it, and on the basis of the facts of each individual cases: DPP (Cth) v El Karhani [1990] 21 NSWLR 370.

60 The relationship between the head sentence and the non-parole period will be established by the deterrent purpose of each and the deterrent effect of the period of actual loss of liberty. When fixing the non-parole period, the considerations, which were relevant when fixing a head sentence, will also be relevant when fixing the non-parole period. However, there are other considerations that come into play when fixing a non-parole period, these being specifically related to the purpose of a non-parole period, such as rehabilitation and the incentive provided by a non-parole period in terms of encouraging good behaviour.

61 I am satisfied that Shadbolt DCJ directed himself appropriately by stating that in drug matters general deterrence assumes significant importance, and I am satisfied that the objective of general deterrence has been given appropriate weight. In terms of non-parole periods Spigelman CJ in R v Behar (Unreported, NSWCCA, 14 October 1998), with whom McInerney and Sperling JJ agreed at p7:

“ The criminality of the offence should be reflected not only in the full term but also in the non-parole period. As the High Court said in Power (1973) 131 CLR 623 at 628:

“In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing Judge considers that the crime committed calls for such detention ”.

62 In his Remarks on Sentence, Shadbolt DCJ made the following remarks, after he imposed the sentence of thirteen years and the non-parole period of ten years:

“Having regard to the principles laid out in Gallagher’s Case 1991 ACR at 218, I am not of the view that this sentence has been reduced below a level which would adequately punish the prisoner to one which would be an affront to the community. It is a sentence which is sufficiently severe to punish the prisoner and to deter him from committing such offences again which, absent he general deterrent which must be foregone by the Crown in return for assistance....”

63 It is evident that the Learned Sentencing Judge had the intention, when fixing the non-parole period that it was sufficient to ensure it reflected the criminality involved, notwithstanding the statutory remission that he was required to take into account. Drug importation is of enormous concern to the community generally, and it is important that the Courts reflect the seriousness of these offences. In setting the non-parole period, Badgery-Parker J held in Drazkiewicz (supra), held at p10:

“There is no tariff which dictates what should be the non-parole period but it is important to remember in determining a non-parole period that it must be of sufficient length to ensure that the sentence reflects the criminality involved and does not lose the very important significant effect of general deterrence which is particularly important in relation to drug importation cases”.

64 Justice Hunt (as he was then) made a relevant comment in Paull at p150:

“Moreover, judges have been recently reminded by the Court of Criminal Appeal that the application of set ratios in fixing non-parole periods necessarily masks the considerations which must be given to the individual facts of a particular case, and that it may have the effect of frustrating the exercise of discretion according to those facts”.

65 Whilst I am of the view that in sentencing it is important that the principles guiding the relationship between the head sentence and the non-parole period should be adhered to, I nonetheless feel in this case that the extra two percent must be seen in light of the particulars of this individual case, as reflected in both the judgments of Badgery-Parker J and Hunt J cited above. The difficulty faced by the Learned Sentencing Judge in balancing the requirements of deterrence and the policy objectives of fixing a non-parole period, while taking into account the several issues in this particular case is so clearly evident from His Honour Judge Shadbolt’s Remarks on Sentence.

66 It must be said that I conclude that the Learned Sentencing Judge did not err in his judgment in determining that the non-parole period for the applicant should be ten years, comprising seventy-seven percent of the total head sentence. Notwithstanding that seventy-five percent is at the top of the range for the most serious cases, of which this is one, I am of the view that His Honour was entitled to set a ten year non-parole period in order that the subjective facts and objective criminality of the applicant were adequately reflected, and its effect as a general deterrence, particularly in relation to drug importation cases, is given its proper place.

67 For the above reasons I consider that the grounds of appeal would not succeed.

68 I would propose the following orders:

1. That leave to appeal be granted; and

2. That the appeal against sentence be dismissed.

69 GREG JAMES J: I have had the benefit of seeing the judgments of Dowd, J. and Smart, AJ. in draft.

70 On an application for leave to appeal against sentence, our task is regulated by the Criminal Appeal Act 1912, s.6(3) of which provides:-

"On an appeal under s.5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefore, and in any other case shall dismiss the appeal."

71 Hence, it is only if error is shown that this court may intervene. Only the detection of such errors as so affect the sentence passed that some other sentence is warranted in law and should have been passed, allows this court to set aside the sentence of the trial judge.

72 I share the view of Smart, AJ. that no lesser sentence than that imposed would have been appropriate. In my view there is no error such as I have referred to, to which s.6(3) would apply shown in the sentence imposed or in the fixing of the components of the sentence.

73 For the reasons Dowd, J. and Smart, AJ. give, I too do not accept the submission that the sentence is manifestly excessive. I do not accept the submission that the starting point of 36 years was excessive. I do no accept that the discount applied in application of s.16G of the Crimes Act 1914 (Cth) was inadequate. Nor do I accept that the ratio between the non-parole period and the head sentence was inappropriate.

74 I agree with the orders proposed by their Honours.

: Chi Keung Chan seeks leave to appeal against the severity of a sentence of 13 years imprisonment with a non-parole period of 10 years imposed in the District Court for the offence of being knowingly concerned in the importation of a prohibited import namely a commercial quantity of heroin. The applicant pleaded guilty. The heroin the subject of the offence weighed 252.3 kilograms, with the gross weight of the powder being 399 kilograms.

The Facts

76 About 3.30 am on 14 October 1998 a speedboat carrying 31 black sports bags in which the heroin was packed landed at Grants Beach, near Port Macquarie. The three men aboard the speedboat (2 Chinese and an Indonesian) were immediately arrested by agents of the Australian Federal Police (AFP). The appellant was the driver of the speedboat.

77 At the time of the landing of the heroin a vessel known as MV Uniana was holding a position twelve nautical miles off the Australian coast. It was boarded by agents of the Australian Federal Police and officers of the Australian Customs Service and detained. Each of the eleven men on board was arrested. Later that day the applicant was interviewed by the police and admitted his involvement. At an early stage he evinced a desire to assist himself by assisting the authorities. As at late May 2001 he had given evidence as a Crown witness in four trials involving 13 of those who were arrested.

78 It is necessary to concentrate on the evidence given in the applicant’s sentencing hearing. It is not permissible to have regard to the evidence which emerged during the trial of K T Mandagi, the captain of the Uniana notwithstanding that that revealed the applicant had a greater role than that to which he originally admitted, that some of his earlier statements were wrong, that others were incomplete and that relevant information was withheld. The sentencing judge, on the limited materials before him and absent any significant testing, recognised that it was difficult to believe the applicant. Allowing for this and the applicant “down-playing” his role in the importation, the materials nevertheless reveal the following story.

79 The applicant was by his own admission, an experienced navigator and sailor with 25 years experience in the fishing industry. He had captained fishing boats or trawlers. After returning to Hong Kong in about April 1998 from a fishing venture around the waters off Kiribati he could not find work as a fisherman in Hong Kong and was in financial difficulties. He contacted a pager number which he believed belonged to a friend and left a message for the friend to contact him. About 11 April 1998 he was contacted by Fei Lo Nam (“Nam”), who ascertained that the applicant was after work. In a later telephone conversation Nam invited the applicant to meet him in Dongguan in China and told him to bring his captain’s licence and his certificates. The applicant told his friend Khong Hoi Lau (aka Ah Lung) and it was agreed that Ah Lung could come along. They went to Dongguan and met Nam. Ah Lung went for a massage while Nam and the applicant spoke. The applicant stated that Nam said that he had a vacancy for a speedboat driver and that he needed someone to take a very important person and some precious luggage into Australia. Nam explained that the speedboat would collect that person and his luggage from a small boat, transfer them to a big boat and later take them to Australia. Nam said “You will be paid $300,000 and I can give you $50,000 now.”

80 According to the applicant Nam said the applicant would only be responsible for the speedboat. Other evidence indicated that the applicant had greater responsibilities. Nam gave the applicant $HK50,000 in cash at the meeting and told him that he (Nam) could give the applicant another $HK50,000 later if he needed it. On ascertaining that the applicant did not speak Mandarin very well Nam enquired whether the applicant knew anyone who spoke Mandarin and wanted some work. The applicant recommended Ah Lung. Nam tested the applicant’s ability to read charts and directions.

81 Nam stated that he would contact the applicant when there were further developments. Nam instructed the applicant to buy a mobile telephone for himself and one for Nam and some phone cards including sim cards in another name. The applicant was told never to purchase anything in his own name. The applicant caused the cards and the mobile phones to be purchased and advised Nam, who arranged for them to be collected and the applicant to be reimbursed.

82 The applicant stated that in early June 1998 Nam instructed him to go to Australia to look at some beaches to see if they were suitable to get a speedboat ashore. He would be met at Sydney Airport. The applicant arranged for a visa and Nam caused arrangements to be made for airline tickets. The applicant collected and paid for them. They included one night's accommodation in Sydney. The applicant flew from Hong Kong to Sydney. Fei Chai met him, took him to a hotel and the following morning drove him to the Port Macquarie area. Fei Chai took the applicant to three separate beaches. The applicant considered the first beach he saw to be the most suitable and another one to be suitable. Fei Chai took a recording from a hand held Global Positioning System (GPS) and made notes. They stayed at a local motel. They returned to the beach which the applicant had nominated as most suitable at night and during the day and assessed if the conditions were any different and observed high and low tides. Fei Chai paid for everything in cash.

83 On his return to Hong Kong the applicant reported to Nam, who told him that the job would be done the following month, that the applicant's task was to drive the speedboat and that Ah Lung was to take care of the satellite telephone on the boat. Nam undertook to organise some special travel permits for the applicant and Ah Lung and the applicant gave Nam a passport photograph. Nam advised that they would be on the boat for two months and requested the applicant to obtain medicines for the trip to take on the boat. Nam gave the applicant a further $HK50,000.

84 About 12 August 1998 Nam instructed the applicant to buy three wetsuits, three life jackets, three pairs of goggles and some torches for the trip. He did so, except that he could only purchase two pairs of goggles. Nam, Ah Lung and the applicant had dinner together that night. Nam gave a new contact pager number and mobile telephone number for himself to the applicant and instructed him:

"Give these co-ordinates and frequencies to the interpreter when you get on the boat, he will need to give them to the ship’s captain. … when you get to these co-ordinates call ‘Man Chai’ on the radio and someone will respond.”

Nam handed the applicant a piece of paper containing all the details including the number of the satellite telephone on board the ship.

85 Pursuant to instructions from Nam, the applicant and Ah Lung put the 3 diving suits, 2 pairs of goggles, diving knife, 2 non-slip shoes, a mobile GPS, medical supplies, food, magazines and the applicant’s personal mobile telephone on board the Uniana on the morning of 15 August 1998. The applicant handed the pieces of paper given to him by Nam containing the radio frequencies and shipping co-ordinates to Ah Mong the Indonesian/Mandarin interpreter on board who handed such papers to Mandagi. He later returned them. The applicant and Ah Lung returned to Aberdeen, Hong Kong and had lunch. Nam instructed them to rejoin the Uniana and they did so. It sailed about 5.00 pm.

86 I interrupt the narrative to describe the Uniana. It had been modified to equip it as a drug smuggling vessel capable of travelling long distances. There were three large fuel tanks under deck and a fresh water tank. A chamber between the water tank and one of the fuel tanks was constructed as a void space with a valve capable of flooding the chamber with sea water. The valve had recently been installed. The speedboat used to ferry the heroin was housed in a specially adapted cradle underdeck in what would otherwise have served as the cargo hold. Whilst outside port limits of Hong Kong Harbour modifications had been made to the derrick located on deck to facilitate lowering and raising the speedboat into the sea under load.

87 The initial leg of the trip took 14 days during which the Uniana sailed into the Andaman Sea via the Malacca Straits and anchored in international waters off the Thai-Burmese border.

88 During this period Nam telephoned the Uniana every day and enquired about its position. Either Ah Lung or the applicant took these telephone calls. In the instances that the applicant spoke to Nam, the applicant was able to tell him of the boat’s current position after studying the GPS and sometimes after consulting Mandagi. The applicant said that he received a telephone call from Nam that they would soon be meeting the other boat and to get ready to set down the speedboat. The applicant said that he relayed this information to Ah Lung and told him to tell Mandagi to make ready with the speedboat. Mandagi became angry and threatened to leave if nothing happened that night. The applicant said that he would let the boss (Nam) know. A short time later contact was made between Mandagi, Ah Lung and a further vessel by way of a two-way radio.

89 Due to rough seas the speedboat was damaged as it was lowered into the sea. The applicant effected some temporary repairs assisted by the Chief Engineer of the Uniana. The applicant drove the speedboat to the further vessel. Ah Lung called out “Man Chai” and he responded. The further vessel manoeuvred alongside the speedboat. Man Chai climbed down into the speedboat. Members of this further vessel, threw 15 very heavy rice sacks into the speedboat. The applicant said that at this point he knew they would not be smuggling human cargo.

90 Not long after the speedboat with the heroin had been lifted aboard the Uniana Nam checked with the applicant via the satellite telephone that the “parcels” were on board. The applicant was told:

“Take the black bags and the plastic bags out of your cabin and take them to Man Chai. Go and help Man Chai he knows what to do with them.”
The applicant did as Nam instructed. The heroin was removed from the speedboat, the blocks of heroin being put in sealed plastic bags and packed in black carry bags.

91 The Uniana proceeded via the Malacca Straits to Singapore. During the journey the applicant carried out repairs to the speedboat. The Uniana was refuelled at sea off Singapore and the water supplies were replenished. During the journey from Singapore to Australia the applicant concentrated on the repair of the speedboat. He also spoke on occasions with Nam on the telephone and received instructions. Twice during the journey the speedboat was taken off the Uniana and tested. By 12 October 1998 the Uniana had reached a point well out to sea and generally off the Port Macquarie area.

92 That night the speedboat was lowered into the sea under torchlight. The venture had to be cancelled due to bad weather. The speedboat was raised and repositioned on the Uniana.

93 Nam, who was directing operations from overseas, later gave the applicant a position from which the speedboat should be launched on 13 October 1998. The applicant conveyed this to Mandagi.

94 The applicant said that during that day Mandagi gave him a position to which he should go to meet the Uniana after unloading the heroin on shore. Fairly late in the evening the lights on the ship were turned off and under torchlight the speedboat was lowered into the sea. Man Chai, the chief engineer and the applicant boarded the speedboat. Each was wearing a wetsuit and a life jacket and had one piece of personal luggage. The applicant drove the speedboat towards the shore, using GPS.

95 In sentencing the applicant, the judge after reviewing the change of story from that given on 14 October 1998 to that given in March 1999, said:

"A combination of these two accounts supports the following findings of fact. (1) The prisoner was employed for one journey. (2) He was to be paid in a sum certain for his part in the enterprise. (3) He brought to the enterprise special skills as a speed boat driver and navigator. (4) He purchased items such as wet suits and goggles. (5) He brought on board the co-ordinates for the rendezvous at the Thai/Burma border. A piece of paper with these co-ordinates on them he had received from Fei Lo Nam. (6) He was never without money because he appeared to have outlaid cash for fares, goods and equipment purchased and was reimbursed 10,000 Hong Kong dollars. (7) He was required to negotiate with the captain who was becoming impatient at the delay at the rendezvous at the Thai/Burma border. (8) He reported the safe arrival of the cargo but apparently was to take orders from Man Chai, who had come on board with the packages, as to their proper stowing. It was clear in the conversations that Fei Lo Nam knew the layout of the ship precisely. (9) He took instructions from Fei Lo Nam and kept him informed."

And:
"It is difficult to determine with precision his position in the hierarchy of this enterprise, firstly, because he has to be believed and this is difficult and secondly, because the relationship between the captain and those who either owned, purchased or transported the heroin is not clear."

96 After weighing a number of factors the judge rejected the Crown contention that the applicant was a delegate of the owners while the heroin was on board and determined to regard the applicant:

"As a specialist employed for one trip only with reporting duties but with no greater decision making role than the performance of his duties to load and unload the heroin…"

97 The judge held that because of the quantity of heroin involved and the sophistication of its delivery to Australia this criminal enterprise must be placed in “that band of most serious cases”. He described it as “smuggling on a grand scale” and held that the applicant’s involvement and objective criminality were very high. Those findings are correct.

98 The subjective factors were taken into account, namely the applicant’s clear record in Hong Kong, the contrition demonstrated by his plea of guilty and the assistance which he gave the authorities. He had good prospects of rehabilitation. He was the substantial carer for his two young children and sole parent. Thus the sentence would impact severely upon them. The applicant was born on 15 June 1954.

99 The judge formed the view that the assistance rendered by the applicant, along with his plea and his undertaking to give evidence led to a discount of 50 per cent. The initial assistance was given promptly. The judge accepted that the applicant’s prompt plea and his assistance to authorities removed him from the maximum penalty of life imprisonment. The judge also accepted that of those amenable to the criminal law of the Commonwealth the applicant’s position was not the most serious.

100 After considering the relevant factors and the authorities the judge took as a starting point, having regard to the objective seriousness of the offence, a sentence of thirty-six years imprisonment. He continued:

"No remissions are in force in New South Wales and in accordance with the provisions of section 16G the sentence is reduced by ten years to one of twenty six years. I would set a non-parole period of twenty years. Applying the discount of ten per cent for past assistance and plea and forty per cent for future assistance particularly in regard to the undertaking, which he has given the Crown, the sentence imposed is one of thirteen years imprisonment and a non-parole period of ten years."
The judge intimated that he would have imposed a sentence of twenty-three years and six months with a non-parole period of eighteen years but for the future assistance. He thought that such a sentence adequately punished the applicant and was not an affront to the community.

101 The applicant submitted:

(a) the starting point of 36 years was too high.

(b) there was no sufficient reason why he should not receive in full the usual discount under s.16G of the Crimes Act 1914 for the absence of remissions in New South Wales, namely, one third. That would result in a discount of 12 years whereas he was only given a discount of 10 years. If the usual discount of one-third (or 12 years) had been given that would result in a sentence of 24 years. A discount of 50 per cent would lead to a sentence of 12 years.

(c) The non-parole period was 77 per cent of the head sentence. This was well outside the usual range of 60 to 66.66 per cent (Bernier (1998)) 102 A Crim R 44.

(d) if the usual percentages had been applied there would have been a head sentence of 12 years and a non-parole period of 8 years. The judge gave no reasons for departing from the usual discount applied under s.16G or for fixing an unusually high non-parole period.

(e) the sentence was manifestly excessive.

102 A mathematical or formulaic approach to sentencing should not be adopted. The Court’s task is to focus on the facts of he particular case and apply the correct sentencing principles to them.

103 However, as the appellant relied on alleged specific errors in the judge’s reasoning and approach it is desirable to deal with them. A starting point of 36 years for the objective criminality involved in this very serious offence was within the permissible range. I would have selected a higher starting point. The s.16G discount allowed by the judge of 10 years, namely 27 per cent was below the one-third which is usually allowed, but the one-third is not immutable. The Court is required under the Act to take the absence of remissions in New South Wales into account and adjust the sentence accordingly. The judge did that. While non-parole periods usually fall within the range of 60 to 66.66 per cent, the Court in Bernier explained that the non-parole period may, depending on the circumstances, be greater or less than the usual range.

104 In the present case, with the large accumulating discounts there was a real risk that the end sentence would end up not sufficiently reflecting the gravity of the offence and just (but not excessive) punishment and thus be an affront to the community.

105 The appellant was recruited as early as April 1998. From the outset he knew that he was to be involved in smuggling. He was prepared to engage in this activity to obtain work and much needed money. His reward was to be substantial, namely $HK300,000 then, according to the evidence worth about $A60,000. He received $HK100,000 on account. His reconnaissance trip in June 1998 alerted him to the size and seriousness of the operation. He was in frequent contact with Nam and carried out the tasks and played the role earlier discussed. From August 1998 until 14 October 1998 he was engaged in the operation on a fulltime basis as earlier described. The applicant’s criminality was sustained over a period of about six months and was of a very high order.

106 On an overall approach, taking into account the objective criminality of the applicant, the subjective features, his plea of guilty, his assistance, his undertaking to assist the authorities in the future by attending conferences and giving evidence and that he is likely to spend much, if not all of his sentence in the harsher gaol conditions of special protection, it was not open to the judge to impose a lesser head sentence or a lesser non-parole period. The same conclusion follows if an approach akin to that of the judge is taken.

107 I propose the following orders:

(a) Leave to appeal against sentence granted.
(b) Appeal against sentence dismissed.

oOo